Nomination of Charles W. Pickering, Sr., of Mississippi, to be United States Circuit Judge for the Fifth Circuit

NOMINATION OF CHARLES W. PICKERING, SR., OF MISSISSIPPI, TO BE UNITED STATES CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

Mr. KENNEDY. Mr. President, I oppose the nomination of Judge Charles Pickering on his record. I want to be absolutely clear about that. Charles Pickering has a disturbing record as a U.S. district court judge that simply does not qualify him for appointment to the Fifth Circuit. He has often been hostile to plaintiffs bringing civil rights claims, he has questioned the value of important constitutional protections such as "one-person, one-vote," and he has tried to restrict habeas corpus. His cases are filled with dicta and with expressions of his own personal opinion. This all calls into question his ability to enforce statutory and constitutional protections and his judicial temperament.

The States of the Fifth Circuit are among the poorest in the Nation. They have a population that is 42 percent minority-the highest of any circuit. For many years, the Fifth Circuit had a critical role in the Nation's history in applying and interpreting the civil rights laws. Not long ago, the circuit was hailed for its courage in protecting the civil rights of African Americans. When Congress passed the 1964 Civil Rights Act and the 1965 Voting Rights Act, many State and local governments in the South resisted these measures. Federal judges such as Elbert Tuttle, Frank Johnson, and John Minor Wisdom helped to make the promise of equality a reality by enforcing these landmark laws of our time. It is particularly important that a judge appointed to this court have a commitment to civil rights, to the constitutional safeguards that protect all Americans, and to the rule of law.

I am disturbed by the rhetoric I have heard today that those of us who oppose this nomination are a "lynch mob." This rhetoric is a profoundly cynical misuse of race and disregards the lessons that we should all have learned from history. Those who cannot tell the difference between a mob bent on murder and torture of an innocent individual solely because of the color of his skin, on the one hand, and those of us in the Senate who seek to focus on genuine issues in Judge Pickering's record, on the other hand, needs a serious history lesson. Frankly, such a comparison is not only unfair, but it does an injustice to those African Americans who suffered and died at the hands of real lynch mobs in the South, including in the State of Mississippi. This is not a lynch mob, this is reasoned debate, and it is part of our constitutional role of advice and consent to engage in such debate.

Judge Pickering's troubling record on civil rights and his injection of his personal opinion can be seen in his extraordinary intervention on behalf of a cross-burning defendant. Pickering repeatedly pressured the Federal Government to drop a charge against a convicted cross-burner to avoid having the defendant serve a congressionally mandated 5-year minimum sentence. Pickering went so far as to threaten to order a new trial, and to initiate an ex parte communication with a high-ranking official of the Justice Department while the case was pending before him. Three ethics experts have written Senator Edwards stating that this conduct violated the Code of Judicial Conduct.

I have spent a great deal of time thinking about this case, and I have come to the conclusion that Judge Pickering's efforts to reduce the defendant's sentence of a convicted cross-burner in United States v. Swan cannot be justified by the fact that other participants in the cross-burning received lesser sentences.

The other two participants in the cross-burning pled guilty and therefore were not subject to mandatory minimum sentences. Mr. Swan was tried and found guilty of a crime that has a mandatory minimum sentence. This eliminated any sentencing discretion Judge Pickering might have had under the law. Thus, this case raises the question of whether Judge Pickering will follow the law even if he does not agree with it.

Mr. Swan was an adult of average intelligence at the time of the crime. By contrast, one of the other participants was severely limited in intelligence, with an IQ of 80, and the other was a juvenile. Thus, Mr. Swan arguably bore greater responsibility for the hate crime. Finally, the materials used to build the cross, the gasoline used to douse it, the truck used to transport it, and the lighter used to ignite it all belonged to Mr. Swan.

The PRESIDING OFFICER. The Senator has used 4 minutes.

Mr. LEAHY. Mr. President, how much time do I have remaining?

The PRESIDING OFFICER. Two minutes.

Mr. LEAHY. I yield the 2 minutes to the Senator from Massachusetts.

Mr. KENNEDY. Judge Pickering has a duty to follow the law and the canons of judicial ethics whether or not he agrees with them. His failure to do so in this recent case cast doubt on whether he would do so if confirmed to the Fifth Circuit.

In a letter to Senator Hatch, Judge Pickering admitted that he has departed downward from other mandatory minimum sentences only when the Sentencing Guidelines allowed an exception.

I have heard some say that the fact that some black Mississippians may support Judge Pickering should be enough to have him confirmed. Many black Mississippians, including those from organizations representing thousands of African Americans in Mississippi have come out against Judge Pickering. The State's major African American Bar Association-the Magnolia Bar Association-has written a letter to the Committee opposing Judge Pickering. He is also opposed by Eugene Bryant, President of the Mississippi State Conference of the NAACP, which represents one hundred chapters of the NAACP.

Democrats have not smeared Judge Pickering's reputation by examining his record. Judge Pickering has a complex legacy. On the one hand, he testified against the KKK and has spoken in favor of racial reconciliation. On the other, he has opposed civil rights laws, and the concept of "one-person, one-vote" under the Voting Rights Act. Democrats on the Judiciary Committee have never said that he is a racist. But the committee has to determine what sort of judge he will be, not what kind of neighbor he is or the nature of his historical legacy. His 12 years as a district court judge provide us with a clear record that he is unwilling to apply or respect the law when he disagrees with it, and I will vote against his nomination.